Public Bill Committee

[Mr. Joe Benton in the Chair]
E47 National Union of Students

Clause 19

Duty to make adjustments

Mark Harper: I beg to move amendment 170, in clause 19, page 14, line 4, leave out in comparison with persons who are not disabled.

Joe Benton: With this it will be convenient to discuss the following: amendment 171, in clause 19, page 14, line 7, leave out in comparison with persons who are not disabled.
Amendment 172, in clause 19, page 14, line 10, leave out subsection (5) and insert
(5) The third requirement is a requirement to provide an auxiliary aid or service where it would enable disabled persons to make use of, or facilitate the use by disabled persons, of a service or other relevant matter, and to take such steps as it is reasonable to have to take to provide the auxiliary aid..
Amendment 173, in clause 19, page 14, line 12, leave out in comparison with persons who are not disabled.
Amendment 174, in clause 19, page 14, line 13, at end insert
(5A) For the purposes of the application of Parts 3 (services and public functions) and 6 (education), the requirements set out in subsections (3), (4) and (5) apply where disabled persons generally are or may be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled..
Amendment 154, in clause 19, page 14, line 15, at end insert
(6A) In taking reasonable steps to avoid the disadvantage, A must take such steps as afford disabled people equal access or, if that is not practicable, to approximate access to, that enjoyed by the rest of the public, to the matter in the applicable schedule to which the duty to make adjustments applies..

This amendment will clarify that duty holders must implement the most inclusive solutionsubject to the usual test of reasonableness in order to comply with the duty to make reasonable adjustments.
Clause stand part.
Amendment 155, in clause 22, page 15, line 26, leave out , 18 or 19 and insert or 18.

This amendment removes what is an additional like for like comparator test from the duty to make reasonable adjustments.
Amendment 176, in schedule 2, page 147, leave out lines 32 to 34 and insert
(a) to remove the feature, or
(b) to alter the feature, or
(c) to provide a reasonable means of avoiding the feature, or
(d) to adopt a reasonable method of providing the service or exercising the function..
Amendment 234, in clause 195, page 138, line 44, at end insert
(i) regulations under section 21 (regulations)..

An amendment to require regulations in relation to reasonable adjustment to be made under the affirmative procedure.

Mark Harper: It is a pleasure to serve under your chairmanship, Mr. Benton. I shall try to brief, although there are quite a number of amendments to explain, some of which are linked. They concentrate primarily on disability. Amendments 170, 171 and 173 are related to the duty to make reasonable adjustments under clause 19 and the comparator that focuses on persons who are not disabled. Our amendments are supported by the Disability Charities Consortium. I want to probe the Minister on such matters.
The consortium believes that the comparator provisions under the clause are undesirable and should be removed as they could lead to serious problems for disabled people when trying to enforce their rights in respect of goods, services and auxiliary aids, where the comparator concept does not currently exist under the Disability Discrimination Acts. Although we understand the Governments desire to provide consistency across reasonable adjustment provision, my understanding and that of the DCC is that they are doing so by introducing comparators in areas of disability discrimination legislation where they did not previously exist. Therefore, the worry is that such provisions will be weakened.
The problem with the comparator is whether we would then have a rerun of the problems in the Malcolm case. Under clause 19(3), (4) and (5) a reasonable adjustment is required only when a disabled person is put at a substantial disadvantage in comparison with people who are not disabled. The use of a comparator is not new in disability discrimination legislation generally. The same language exists in the employment provisions of the DDA, but the comparator is not used in part 3 for goods, facilities and services when an anticipatory duty is owed to disabled persons as a whole, and nor is it used in relation to the duty to provide auxiliary aids and services.
The reason for the concern is that comparators were brought to light in the Malcolm case when the concept of related discrimination was undermined through the Law Lords reinterpretation of how the comparator in a case should be decided. That had previously been established in the case of Clark v. Novacold. Indeed, that problem has been recognised in the Bill in provisions that would put the legislation back to where we thought it was prior to the Malcolm case.
Amendment 172 inserts at the end of the clause new wording that would require providers of goods and services to provide auxiliary aids and services when that would facilitate the use of such services by disabled people. Such a provision would remove the requirement for a comparator. Will the Minister clarify the effect of the change in wording in the Bill, compared with that in the DDA? In part 3 of the DDA, service providers already have to provide auxiliary aids when reasonable, if those aids would facilitate or enable disabled people to make use of services. The thresholdor triggerfor providing the aid is when it would otherwise be impossible or unreasonably difficult for the disabled person to make use of such services. A comparator would not be needed to establish that discrimination has taken place.
The Bill provides that the aid should be provided when disabled people have a substantial disadvantage in comparison with those who are not disabled, and the DCC is concerned that that substantial disadvantage must be determined through the use of a comparator. It considers that that might weaken the legal protection that disabled people already have under the DDA. The amendment would, in similar language, put the threshold found in part 3 of the DDA back into the Bill. I seek an explanation from the Minister of the changes and their effect in order to ascertain whether the amendment is required.
Amendment 174 would explicitly include the anticipatory nature of reasonable adjustments. As I said, part 3 of the DDA says that the providers of goods and services must anticipate the needs of disabled people, ensuring that the services that they provide are accessible. They must think about such matters in advance, not wait for problems to arise or to be contacted by someone who has had a problem obtaining goods or services. The anticipatory nature of the reasonable adjustment duty is essential to its working. Again, the DCC, on behalf of a range of disability organisations, wants to ensure that that aspect is maintained in the Bill. We believe that the amendment would achieve that.
Amendment 176, to schedule 2, deals with physical features. We wish to retain the approach laid down in the DDA, which is that the focus must be on removing or altering physical features that cause a barrier for disabled people before considering other means that do not involve eliminating it. One cannot just think of a way around the problema work-around. One must first consider whether the barrier should be removed. Only if that was unreasonable could one fall back on going around it.
The amendment would omit paragraphs (3)(a) and (3)(b) of the schedule, replacing them with four new sub-paragraphs. The first is on whether the feature can be removed; the second is on whether it can be altered; the third is about providing a reasonable means of avoiding it; the last is about reasonable methods of providing the service or exercising the function in a different way. However, that order must be followed, so that one first thinks about making it as easy as possible. The amendment would provide a clearer and more systematic approach for service providers, which would be an improvement. Will the Minister say how that compares with the Bill, which is effectively different from the DDA?
I hope that the Committee will forgive me for speaking at such length on these wide-ranging amendments. I look forward to hearing the Solicitor-Generals comments.

Lynne Featherstone: Welcome back to the Chair, Mr. Benton.
I wish to speak to amendments 154, 155 and 234, tabled by me and my hon. Friend the Member for Oxford, West and Abingdon. The hon. Member for Forest of Dean made some interesting points, and I shall listen carefully to the Solicitor-Generals response. 
Through amendment 154, we seek clarification from the Minister. The amendment would emphasise that duty holders must not only make reasonable adjustments, but that the asymmetry applied to those with disabilities under discrimination law must be preserved, so that optimum reasonable adjustments are made that are inclusive and a long-term solution, rather than just a temporary one. An example of the latter would be if a disabled customer wanted to enter a bank that had steps but no ramp, and the banks reasonable adjustment was to put up a doorbell allowing the customer to ring for someone to get the wheelchair up the steps. In our view, the optimum reasonable adjustment would be for the bank to build a ramp to facilitate the same service.

Tim Boswell: In no sense do I wish to subvert the substance of what the hon. Lady says, as I agree that it is important that service providers should make the best possible provision. Indeed, it is often in their own interests. Nevertheless, does she not think that in legal terms it is slightly quaint to impose a double dutyto be both reasonable and optimal? One can meet one without the other. I believe that she is hoping for people to meet the optimum test. In that case, we need to change the law and should say so.

Lynne Featherstone: I thank the hon. Gentleman. That may be a helpful intervention, as I am not a legal expert. I am probing the Minister on which is the best wording to arrive at an optimum solution that maintains the asymmetry for people with disabilities.

John Mason: Following on from the previous intervention, many people would consider it quite unreasonable just to put a bell in and expect that to be the answer. It might not be optimal, but we are trying to achieve the reasonable, and a bell seems absolutely minimal.

Lynne Featherstone: That may or may not be the case. It would have to be argued in law, but the purpose of the amendment is to try to ensure that the reasonable adjustment is not simply cosmetic, but affords equal access or access that is as near to equal as possible. In particular, adjustments must be made to secure equal participation in society. It is critical to disabled people that the duty is not diluted in any way so as to reduce that participation. We should not be happy with a minimum or a rudimentary gesture towards adjustment, and that is what the amendment says. I am more than happy for the Minister to adjust the wording if she thinks that I am making a point that is worth responding to.
The Equality and Human Rights Commission supports the amendment. It welcomes the introduction of the single substantial disadvantage trigger, but it is concerned that the duty is constructed so that its primary focus is avoiding disadvantage, rather than removing barriers that prevent disabled peoples full participation. The amendment would have the twin benefits of consistency and clarity of approach and would make it clear in the Bill that, for example, a service should, wherever possible, be provided to a disabled person in the same way as for a non-disabled person, and that might, could and sometimes should deliver asymmetric effort.
Amendment 155 relates to the comparison by reference to circumstances, in relation to reasonable adjustment. We want to remove the like-for-like comparator. I shall give an example. We want to make it explicitthere were comments from the Conservatives along these linesthat one should compare a blind person with a guide dog going into a restaurant with a seeing person who has no dog. The defence is not, We do not allow dogs. The comparison is with someone who is sighted, and a reasonable adjustment should be made. Therefore, there can be a material difference between the circumstances, because again we come back to the asymmetric nature of the protected characteristic.
Amendment 234 relates to clause 195, page 138, line 44, which deals with the regulations that apply to the provision. They are extremely important regulations that deal with what is probably one of the most fundamental real-world effects or changes that will enable people with disabilities to get something that they need changed for the better. However, that has been left out of the list of orders and regulations in subsection (5), which require the affirmative procedure. Should there be a change to the regulations, it is vital that that they are subject the affirmative procedure; there should be debate and the measure should go before both Houses. I shall be interested to hear the Ministers response to those points.

Vera Baird: I am grateful for the opportunity to set out our response on these matters. The following is a good point for me to make at the outset. Various parties on the Committee may say that a particular provision is supported by x body and another by y body. I am not suggesting for one moment that that is not the case, but on many such occasions that body, rather than asserting that there is something wrong with what we are doing, wants to probe why we are doing something differently. We all need to put assertions that the EHRC supports this or that provision in that context. Of course, I am glad to seize the opportunity to discuss such issues, because they are probably cases in point. The important thing is to understand why we want to proceed, rather than necessarily to find that there is something wrong with how we want to proceed.
The measures deal with the duty to make reasonable adjustments for disabled people, which is obviously unique to the provisions of disability discrimination legislation and a cornerstone of the protection that the Bill provides. We need to ensure that the new provisions work, so it is good to look at whether there are better ways to proceed, although we are pretty satisfied that we have things right.
Amendments 170, 171 and 173 would remove the comparator entirely from clause 19. The reasonable adjustment duty is triggered when the disabled person is
at a substantial disadvantage... in comparison with persons who are not disabled.
A substantial disadvantage is a disadvantage that is more than minor or trivial.
It might be worth saying at this stage that the test of substantial disadvantage is a significant clarification. It introduces better consistency to our approach and is a lighter test for a disabled person to discharge than what preceded it. The hon. Member for Forest of Dean mentioned the trigger for services provision in the DDA, and there are two thresholdsthat the use of services is impossible or unreasonably difficult without the reasonable adjustment. Clearly, impossible and unreasonably difficult are much higher tests for a disabled person to pass than substantial disadvantage. The test is now also one single test, so that is definite progress.
The employment provisions in the DDA contain a comparator like that in the Bill. We have no evidence that the use of a comparator in that context has led to any difficulty, and nobody has cited such evidence here. To put things pretty straightforwardly, having a substantial disadvantage test, which is good, raises the question, Substantial disadvantage in comparison to whom? We therefore need a comparator to make sense of that steadier, more consistent provision. That comparator has worked well in employment, and we think it will work well in this case. Removing the comparison with people who are not disabled would make it far more difficult to pinpoint when somebody had been disadvantaged.
Amendment 172 would really alter the dynamics of how the reasonable adjustment duty is designed to work. It would increase the circumstances in which the service provider was required to make a reasonable adjustment by providing an auxiliary aid or servicethat is in subsection (5)because it would replace the substantial disadvantage threshold with a reference to enabling or facilitating the use of a service.
Obviously, we have to balance the rights of the disabled person and the other party, but the amendment would have the significant disadvantage of removing the consistent test of substantial disadvantage. It would also unfavourably move the balance towards the service provider. We think that substantial disadvantage is the right approach.
All the evidence that we have is that the reasonable adjustment duty has greatly increased disabled peoples access to services over the years, and we are widening its application in the way that I have suggested. With respect, I therefore invite the hon. Member for Forest of Dean not to press the amendment.
Amendment 174 is about the anticipatory duty against the three reasonable adjustment requirements in relation to education and services. This is not straightforward, but it is none the less clear that if one casts an eye over paragraph 2(2) of schedule 2 on services, and over the education provisions in paragraph 4(1) of schedule 13, one sees that the content of the amendment is already present in the Bill, so there is no need for it.
In an earlier debate, amendment 154, tabled by the Liberal Democrats, was called the optimising amendment. It would achieve the outcome that we seek by means of a service provider making a reasonable adjustment. The disabled person would have similar or equal access to a service, but there are drawbacks in doing it that way. It would introduce another comparatorone level of service against anotherwhich is over-complicated. The example of the bell, which prompted the intervention from the hon. Member for Glasgow, East, is a case in which it was found that that was not sufficient.

Tim Boswell: A point that has troubled me a little in the past, which might be behind the intervention on the bell, although I cannot speak for my hon. Friend the Member for Forest of Dean in this matter, is whether there is a frequency test. If that happens once a year, it is clearly very different from something that happens with one bank customer per day. Is that something on which the legislation will be sensitive?

Vera Baird: That is almost the point that I was going to come on to. The adjustments have to be reasonable. I suppose if there was only one occasion a year when something happened or it was foreseeable that it would happen, it might not be reasonable to require those adjustments and they might not be reasonable adjustments.
I was coming on to talk about reasonableness, though briefly. The hon. Member for Hornsey and Wood Green expressed the concern that we might be in danger of requiring merely cosmetic changes, which would not be reasonable adjustments. They cannot be cosmetic; they have to be reasonable. That is the point of the definition, so that danger is not really present. The outcomes of the duty that she seeks are best ensured by the provisions that we have drafted, and there will of course be a code of practice and guidance afterwards.
Amendment 155 seeks to remove the need to make a comparison with a non-disabled person, but it would not achieve that. Where provision or practice puts someone at a substantial disadvantage compared with a non-disabled person, clause 19(3) requires that reasonable steps must be taken to avoid it. We have the comparator and that is the right approach. Otherwise, how would an employer or service provider judge whether they were putting disabled people at a substantial disadvantage? Again, we need to ask the question, Who?
To make the comparison work, we must compare like with like. As clause 22 sets out, that means comparing a disabled person with someone whose circumstances are not materially different. Clause 22 makes it clear that the comparator has to be like for like. It works well in clause 22 and the amendment is not necessary.
Amendment 176 would bring the language of the DDA into the Bill where a physical feature puts a disabled person at a substantial disadvantage. We heard evidence in Committee that the absence of a reference to removing the feature as an option is being interpreted as weakening the provision, but that is not the intention and we do not think it is the case. The emphasis is on taking reasonable steps to avoid the disadvantage, which might require removal. If that is at the root of the thinking here, it is not a danger that needs further consideration.
Exemplifying how the duty might be delivered in different circumstances, which is partly what the amendment proposes to capture, is best done in practice. Clause 19 is essential to protect the disabled. Having outlined how we see it working, I respectfully say that we have it balanced, we have it right, and we have improved and simplified the law, particularly the tests.
Amendment 234 relates to the regulation-making power in clause 21, which carries forward DDA section 21 powers, which have been exercised a number of timesfor instance, when we extended to service providers the duty to make reasonable adjustments. Most recently, they have been used to make the Disability Discrimination (Transport Vehicles) Regulations 2005, which relate to the duties of transport service providers to make reasonable adjustments. There are all sorts of examples of the powers having been used beneficially.
The regulations tend to be a bit esoteric and technical, because they involve meeting new developments to ensure rights, so I do not think for one moment that Parliament ought to spend its time on them. It is best that the changes are in regulatory power. It is correct that the regulations use the negative procedure, but if we introduce regulations that might change schedules in the Billunder clause 21(3), for example, not this onethey will use the affirmative procedure.
All such regulations will be affirmative where they can change legislation and negative where they deal with technical, esoteric powers that, due to their nature, we do not feel merit more parliamentary time. There is absolutely no intention to usurp power; we just think that that is a convenient location at the right level for subsidiary legislation.
I hope that that is comprehensive and that I have persuaded hon. Members that the clauses work well as they are and the amendments are not necessary.

Mark Harper: I thank the Minister for that and I should say at the outset that I agree with her. When I expressed the concerns supported by the DCC, it was very much because the DCC wants to establish them. I was not intending to set up any kind of contest or to pray in aid lots of people on my side.
The Minister made a good point about the comparator test being in the employment provisions and the fact that that has not led to any issues. I know that the Government are keen to avoid nervousness, but the DCC is concerned simply by the change of goods and services from the DDA to the Equality Bill. I know that Ministers want to make absolutely certain that there is no regression, to use a phrase that we have been using throughout Committee proceedings, and no weakening. She made that point clear.
Given that concerns about the comparator have been particularly highlighted by the Malcolm case, that clause 14 contains provisions to deal with it and that the Minister said during a previous sitting that she is working with the DCC and hopes to introduce changes to the wording of clause 14 to deal with some of the concerns on Report, I think that we can avoid the comparators creating a rerun of the Malcolm case.
On amendment 176, the Minister spoke about the Governments intentions in making it clear to service providers what they should be doing to remove physical difficulties. As long as guidance from Ministers and the EHRC makes it clear that the first thought should be removing the problem, not just looking for a quick work-around, that can be dealt with in guidance. She addressed that concern. Given all those reassurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.

Clauses 20 and 21 ordered to stand part of the Bill.

Clause 22

Comparison by reference to circumstances

Question proposed, That the clause stand part of the Bill.

Evan Harris: I rise to question the Minister as to the explanation behind subsection (3), which states:
If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is a civil partner while another is married is not a material difference between the circumstances relating to each case.
It would be helpful if that was clarified.
I have had a note from the Lesbian and Gay Christian Movement also seeking to clarify the background and pointing out that there may be a problem. I am not sure that that is right, but I am not sure it is wrong. The letter explains that the movement favours
the legal equalisation of civil partnership and marriage, and where there is good reason to apply a restriction across the board (eg if there were no accommodation at an hotel suitable for couples)
considers that would be all right. It goes on:
Where people are discriminated against purely because they are in a civil partnership, however, when no such restriction is applied to the married, this is not acceptable.
I am sure that that is the motivation behind existing legislation and the Bill.
The Lesbian and Gay Christian Movement interprets clause 22(3) as dealing with the type of case in question by
treating the denial of services, work etc. or other discrimination as one relating to sexual orientation.
The concern is that that might not meet the case. The letter says something that I am not sure is right in spirit, although it may be in law, which is that
the status of civil partnership implies no intrinsic sexual relationship, that its contribution to the stability of society as a whole was strongly stressed by the Government and accepted by others throughout the discussion and passage of the civil partnership legislation, and that
I think the implication is that this was a result of that fact
many Christian leaders supported the passage of that Act, including in particular eight out of the ten Bishops voting in the crucial final decision on the then Bill in the Lords, and indeed a former Archbishop.
That was because we have clerics in our Parliament as of right.
Concern is expressed in the letter and this is the nub of it:
It would be bizarre if the Bill led to those contracting civil partnerships (or indeed marriage) being themselves treated adversely by comparison with those who had chosen not to contract these relationships. Indeed, this would negate the wholeand welcomepurpose of including them in the protected categories at all.
I wonder whether the letter is making the point, although I find it difficult to sustain this argument, that sexual orientation may be a distraction from the main reason for discrimination. I hope I have given the Minister a chance at least to understand the concerns that have been put to me, even if I do not necessarily recognise them as justified.

Vera Baird: I have partially grasped the concerns. Explanatory note 96 puts pretty simply the point of subsection (3), which is that a civil partner who is treated less favourably than a married person in similar circumstances is being discriminated against because of sexual orientation. As to the issue about the definition of civil partnership and its not necessarily having to be sexual, I suppose that that is just a nodperhaps an important nod, to some peoplein the direction of the fact that, in law, for a marriage not to be void it must have been consummated. There is no such requirement in a civil partnership. That may be where the leeway arose, and it might not be unhelpful leeway to have available, for several reasons.
I suppose that I should say that, for the purpose of discrimination law, marriage and civil partnership are treated the same, so any discrimination between the partner in one of those as opposed to the other will be discrimination on the basis of sexual orientation. I hope that that is comprehensive enough.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clause 23 ordered to stand part of the Bill.

Clause 24

Harassment

Evan Harris: I beg to move amendment 230, in clause 24, page 17, line 26, at beginning insert, Subject to subsections (2A), (2B), (2C) and (2D),.

Joe Benton: With this it will be convenient to discuss the following: amendment 38, in clause 24, page 17, line 27, leave out or and insert and.

Raises the threshold in the definition of harassment in order to mirror the wording of EU Directive 2000/78/EC, Article 2.3.
Amendment 231, in clause 24, page 17, line 29, at end insert
(2A) Subject to subsection (2D) where the protected characteristic is sexual orientation, for the purposes of Part 3 (Services and Public Functions), the purpose or effect is
(a) violating Bs dignity; and
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2B) Where the protected characteristic is sexual orientation or gender re-assignment, for the purposes of Part 6 (Education), the purpose or effect is
(a) violating Bs dignity; and
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2C) Subject to subsection (2D) where the relevant characteristic is religion or belief, for the purposes of Part 3 and Part 6, the purpose or effect is
(a) violating Bs dignity; and
(b) creating an intimidating, hostile, degrading or humiliating environment for B.
(2D) Subsection (2A) and (2C) apply to Part 3 (Services and Public Functions) only where the provision of a service is
(a) carried out by a public authority,
(b) carried out on behalf of a public authority,
(c) carried out under contract to a public authority, or
(d) otherwise carried out in the exercise of a public function..

This amendment extends protection against harassment on grounds of sexual orientation, gender reassignment and religion or belief in relation to part 3 (where exercising a public function) and part 6. Harassment is defined in a more limited way.
Clause stand part.

Evan Harris: I think that amendment 232 to clause 27 is consequential on the amendments that I and my hon. Friend the Member for Hornsey and Wood Green have tabled. I am happy to deal with it now rather than on clause 27, if that is convenient, although obviously you would need to agree to that, Mr. Benton. However, if I deal with it appropriately now, I will not need to speak to it later.
There is a threefold purpose to my amendments. The first is to extend the protection from harassment in law to captive populationspeople who cannot escape harassment, and vulnerable people in particular. That could include people in the education systempupils at school, for exampleor users of public services who, given the nature of those services, might be vulnerable. They might rely on those public services and they should not have to suffer harassment while accessing them.
The clause provides protection from harassment to all the strands except two; I will come to that during the clause stand part debate. However, other parts of the Bill specifically exclude discrimination on the grounds of sexual orientation, religion and belief, and gender reassignmentto use the Governments termin certain areas.

Tim Boswell: For the information of the Committee, will the hon. Gentleman clarify whether the definition of public services that he has in mind regarding captive audiences and groups includes prisoners? There are concerns about harassment and discrimination among certain groups of sensitive prisoners.

Evan Harris: Indeed. Clearly, imprisoning people as part of the criminal justice system is a public service. It is a public function, even if it is delivered by the private sector under contract. There has never been any argument about that and human rights laws apply. If we are identifying a distinction between the general delivery of services and public services, as I urge the Committee to do, and saying that there should be greater protection where people are receiving public services, that point applies.
Let us deal first with education. In education, there is no protection from harassment on the grounds of sexual orientation, gender reassignment and religion or belief. I understand that in respect of gender reassignment that exclusion exists only in education. There is protection from harassment on the grounds of gender reassignment in the provision of services, but not in education. It is amazing that education should be singled out as the one place where young people, who are likely to be in education, are not protected against harassment on the grounds of gender reassignment as defined in the Bill.
Harassment in those circumstances means violating the dignity of someone on the grounds of gender reassignment. That might involve someone who is on the journey towards gender reassignment, for example, or even before that, if the House accepts the definition of gender reassignment proposed by the Liberal Democrats. Under my amendment, harassment would also include the creation of an
intimidating, hostile, degrading, humiliating or offensive environment for B.
I do not see how it can be considered acceptable for any school to be allowed to get away with that happening to a vulnerable pupil.
I understand that gross cases of harassment might be dealt with by direct discrimination legislation, but we need a protection that applies to cases that fall short of that, just as other strands are protected. It is not good enough to say that it is okay because if someone is picked on in a specific way by a teacher, for example, that passes the threshold for direct discrimination. On that basis, why have any harassment provisions in schools when direct discrimination provisions already apply in the worst cases?
On sexual orientation, the evidence that harassment exists in schools is even stronger. That is why the omission of some form of protection concerning sexual orientation is a concern. I accept that issue has been controversial for a while, and I have not always argued as strongly as I do now that we need protection on the grounds of sexual orientation in harassment provisions generally. Indeed, my party and I were supportive when the sexual orientation regulations provided not to do thatwhen such matters were dealt with by regulation.
Part of that was, first, a concern that free speech might be inhibited in the general provision of services and, secondly, that primary legislation was needed to delve into whether the definition of harassment would be so strict that it fell on the wrong the side of the balance, restricting freedom of speechchilling freedom of speechand making some speech unlawful, which would have been disproportionate to what we wanted to do.
The case has been made that there is a problem in respect of the amount of homophobic bullying that is known to take place in schools. Many schools are failing even to develop policies specific to homophobic bullying. In other words, they are not doing what they need to do to start to tackle the problem. It is unacceptable in such circumstances for there to be no legal protection against harassment on the grounds of sexual orientation. That would focus the minds of governing bodies of schools, whether faith or other schools, on the fact that they have a legal obligation to protect vulnerable pupils and that the creation of an environment that is intimidating, hostile, degrading, humiliating or offensive is not acceptable.
I am sure that the Government agree that such a thing is not acceptable. The religious witnesses at the oral evidence sessions also agreed that they would not want to see it, but for some reason they thought that the law should not apply. That is an unsustainable position. If the problem is serious enough to say that it should not happen and there is evidence that it does happenthere is no doubt about thatthere is no reason to provide a legal exclusion on such grounds.
I hope that the Government do not share the view that such a thing is unacceptable but that it does not have to be provided for in law. In respect of sexual orientation protection in schools, we believe that the case is at its strongest.
Arguably, there ought to be protection from harassment on the grounds of sexual orientation in the delivery of public services. It seems wrong that people receiving public services, which are often their rightthere is sometimes only one provider availableshould have to suffer harassment without recourse to law. The providers, because there is no legal obligation, do not prioritise the need to educate their work force that harassment ought not to take place, however strong the views about the morality of sexual orientation or other matters.
It is not good enough to rely on the argument that there may be a variety of service providers available. In the case of discrimination on the grounds of race, we did not argue that one was entitled to have a whites-only bus on the basis that there was a bus with mixed passengers following just behind and that that was all right for the lady in the United States who objected. The Government quite rightly used that argumentI remember Ministers doing so, and I applauded themwhen people sought an exemption from the injunction not to discriminate on the grounds of sexual orientation when providing adoption services to lesbian and gay people. Catholic adoption agencies argued, for example, that there would be other providers that lesbian and gay parents could go to. That is not an acceptable way to deal with unjustified discrimination, saying, Oh, we can, because there is another organisation down the road. Sometimes a school or a service provider is the only service provider in the villageto paraphrase a comedian in relation to sexual orientation. Therefore, people in receipt of public services have a right not to be harassed.
In those areas there is a clear argument for having the protection. The question then moves onin this matter, I shall deal with the amendment standing in the name of the hon. Member for Glasgow, Eastto the conjunctive versus the disjunctive version of clause 24(2). The wording is that the purpose or effect referred to in subsection (1)
is... violating Bs dignity, or... creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The original directive uses not the disjunctive or, but the conjunctive and. The hon. Gentleman highlights that in his amendment, but it would be difficult to change that protection, which is clearly a higher protection, because it is easier to qualify for an either/or definition than to satisfy both limbs. The principle of regression probably means that it is not possible for us to go back and undo protection against harassment on existing grounds.
Whatever the merits of that argument, my proposal would not do that, but I recognise that there is an argument for a slightly narrower definition which is based on the need to have respect for freedom of speech and the idea that too low a threshold for harassment claims might intrude on freedom of expression. Clearly, the conjunctive version will be narrower, because behaviour would have to have the purpose or effect of violating the dignity of someone to whom it was directed and creating an environment that was
intimidating, hostile, degrading, humiliating or offensive.
Our proposal for harassment protection on the grounds of sexual orientation and gender reassignment uses that version. People will argue that it is a lesser protection than currently. They might argue that a one-off occurrence of harassment is difficult to fulfil the limb, which would be required with an and, that it creates an environmentit is hard to create an environment with a one-off action. If the one-off action were sufficiently serious, it might well be caught by provisions on direct discrimination; if it were not so serious, it would be reasonable to take a two or three strikes and youre out approach, as currently exists in harassment law regarding the actions of third parties for which employers have some responsibility. That is a reasonable balance.
I looked carefully at whether creating an offensive environmentthat is the easiest of the environments to createon the ground of sexual orientation even when that is not intended goes too far, but I cannot think of any scenario, even in the teaching of religious education, in which it is acceptable to create an offensive environment. There is no need to do so. If a teacher of religious education needs to say that some religions believe that homosexuality is sinful or worse, they can do so, but that does not create an offensive environment unless they actually say, Homosexuality is sinful. It is not appropriate for school teachers to tell people that their lawful behaviour or that of their parents is sinful and stands to be condemned. Describing what other people think would not fulfil those grounds, but if people feel that it would create too great a constraint, we would be willing to consider the matter, because it is important to have some protection.
The same provisions apply in principle to religion and belief: there needs to be protection for people against harassment on the grounds of their religion or belief in schools or when they are in receipt of public services. Exactly the same arguments that I made in respect of sexual orientation apply. Other forms of the lawthere is cross-party support for thisrecognise that it is difficult to avoid causing offence on the ground of religion based on the religious sensitivities of B. Often, one religions theology is offensive to anothers by definition. I make no criticism of that because it is the way of such things. It is probably also true of politics, although that is not covered. It is therefore reasonable to have a significantly narrower definition of harassment to ensure that the usual conduct of religious behaviour is not caught.
It is therefore reasonable to argue that there should be protection from harassment on the grounds of religion and belief on a conjunctive definition that omits the term offensive with regard to environment. No matter how sensitive or thin-skinned someone isI do not use that term pejorativelyI do not believe that it is appropriate in education and in the delivery of public services to create an
intimidating, hostile, degrading...or...humiliating...environment.
So even if someone does not find something such as a poster offensive, I do not see how we can defend not outlawing the creation of an environment with the characteristics I just described. Therefore, the amendments that stand in my name, which are my best attempt to construct such an argument in the frame of an amendment, rather than a new clause, seek to strike the right balance between extending protection and preserving free expression.
I have not read into the record the examples of homophobic bullying that exist in schools, sent from organisations such as Schools Out, Stonewall and OutRage!. However, I am sure that hon. Members are aware of them, and do not need me to do that here. None the less, I want to pay tribute to those organisations for their long-standing work, in partnership with parliamentarians of all parties in this House over many years, to highlight the problems.
Turning to the clause stand part, the issue with the test in subsection (3) is interesting. The question is whether it is sufficiently objective for the purposes of the existing protection, and whether it is sufficiently objective to provide enough protection for the freedom of expression and behaviour, where we seek, as I do, to extend protection from harassment to new grounds. I will be gratefulthis is the reason I am flagging it upif the Minister gives us the benefit of her views, based on her experience and insight, regarding how objective she believes the test is.
The wording of the subsection is:
In deciding whether conduct has that effect,
the effect that I have described, in the currently disjunctive definition in subsection (2)
each of the following must be taken into account
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
The question is whether paragraph (c) is a stand-alone issue for the courts to decide, or whether it still relates to the perception of B. It is important not to argue that it is regression, but I hope that the Government will agree with the following: separating out the perceptions of B and A and seeing whether it is reasonable for the conduct to have that effect would create a more objective test, so that someone outside may ask, Is it reasonable that that behaviour creates the environment without having as much reliance on the perception of B as would exist if that was all in the same paragraph?. In other words, it asks whether it is reasonable for the conduct to have that effect by taking into account the perception of B and all the circumstances, or whether that is the case by taking into account all the circumstances of the case, including, in particular, the perception of B. It strikes me that that is a slightly more objective test. I hope that that is the case, because there needs to be some objectivity here.
We know what we are trying to get at. Pictures of pin-ups in workplaces clearly create the environment that is talked about, and indeed may violate the dignity of a woman. It is not a question of subjective perception or the need to be particularly sensitive, even if there were a woman in the workplace who did not find that offensivethat is a reasonable, objective test to be made. I am not arguing that that is regressive in any way, but I hope the Minister will agree that it clarifies that the test of reasonableness does not relate to the perception of B, but is, in a sense, a stand-alone issue.
The other point that I want to raise on clause stand part is the exclusion of marriage, civil partnership, pregnancy and maternity from the list of protected characteristics. The missing characteristics raise the question why there is no coverage at all, even in existing protected environments such as the workplace, where we know this sort of harassment currently exists. I believe that the Minister has been asked about the matter by the Joint Committee on Human Rights, among others. It would be useful if she could explain why the list of protected characteristics in subsection (5) does not extend to those two areas.
Without giving examples of the sort of mischief that I am trying to cover, I hope that I have made a very strong case for the extension of harassment protection on the grounds of sexual orientation to schools and the provision of public services, on the grounds of gender reassignment to schools and on religious grounds, on a narrower definition, to schooling and provision of public services. This is a controversial matter. After the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, which included a harassment provision, were introduced by the Government, as a take-it-or-leave-it measure, they were challenged in judicial review in Northern Ireland. The court rightly upheld the regulations in general, and the only part that did not survive the challengerightly so, in my viewwas the harassment provision. That was based mainly on a lack of consultation, but the judge also referred to concerns by the Joint Committee on Human Rights.
That does not mean, however, that there should never be any protection from harassment. The Government did not get it quite right in the 2006 regulations, and were wise not to put them in the Great Britain regulations, because by their nature they were unamendable. The Bill gives us an opportunity to deal with this matter in a considered way, and I hope that the Government will view my probing amendmentit would not be appropriate to divide on itas a way in which to open this debate, so that we can hear either the Governments justification or their willingness to consider the matter further.

Emily Thornberry: In the past 12 years, huge changes have been made to equality legislation, and the gay and lesbian community is now on the verge of absolute equality under the law. However, much remains to be done. Clearly, one of the most important areas on which people quite rightly focus is the way in which young gay and lesbian people are treated at school. The extent of homophobic bullying is frightening, and anything that we can do to stamp it out is incredibly important. I also seek clarification from my hon. and learned Friend on whether the legislation, as proposed, is sufficient to do everything possible to ensure that young and vulnerable people, who are just finding themselves, are not subjected to bullying.

John Mason: I shall speak, in particular, to amendment 38, although I shall refer to comments made already. Once again, I am speaking in a personal capacity, rather than on behalf of my party.
I tabled amendment 38 primarily to probe why the definition of harassment adopted in the UK is wider than that found in the relevant EU directive. The test for harassment in the Bill, and in previous legislation, including the 2003 employment equality regulations, has two alternative limbs: the unwanted conduct has the purpose or effect of violating the victims dignity or of
creating an intimidating, hostile, degrading, humiliating or offensive environment
for him.
That definition first appeared in the Employment Equality (Sexual Orientation) (Amendment) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003. Those regulations implemented EU directive 2000/78/EC. Article 2.3 of that directive defines harassment in these terms:
Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds ... takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.
There is a difference here. Instead of violating dignity or creating a hostile environment being alternatives, in the directive they are cumulative. To prove harassment under the EU definition, it must be shown that the conduct violated dignity and created an offensive environment, which is clearly a higher test.
I do not claim to be an expert in this area, but I am curious about whether the Solicitor-General can explain why, in implementing the 2000 directive, the wording was altered in this important way. It is important, because it is obviously easier to prove harassment under the UK test than under the EU test. For example, if I cannot persuade an employment tribunal that someone violated my dignity, I might still be able to persuade it that the person created an offensive environment. In other words, under the UK test I get two bites at the cherry, whereas the EU test would require me to prove not one but both limbs before my claim would succeed.
I do not underestimate the importance of tackling harassment in the workplace or anywhere else. On Tuesday, we considered the Ladele case, in which it was clear that the Christian woman involved was poorly treated by her employers and, at the first instance, the tribunal made a finding of harassment.

Emily Thornberry: That person was a registrar in my constituency, where a large number of gay weddings, as we call them, take place. Every day, many gay couples leave the town hall, finally having been allowed to have some sort of union. This woman decided that, despite the background in my constituency, her religious beliefs were more important than those of the people whom it was her job to marry, by registering their union. She put that above her employment obligations and, quite rightly, her case was turned down on appealand so it should have been, because she was employed to do a job and she should have just done it. If she did not like it, she should have got another job.

John Mason: I thank the hon. Lady for her heartfelt intervention, but is there not room in a diverse communityespecially one like her constituencyto allow a place both for gay marriages and for peoples individual consciences? Can we not have a society where both those things live together?

Diane Abbott: I do not want to prolong this argument, but the hon. Gentleman has asked the Committee a question and I should like to answer it. I am familiar with the part of London where this took place and familiar with the community from which that registrar came. I am clear that some people use their religion as a vehicle for cultural bigotry, clearly and simply. Precisely because I know those communities well, it is important to draw a line and say, You cannot use your religion to allow your bigotry to affect how you carry out your duty to the public. If we do not draw the line, bigotry will encroach ever more on the delivery of public services. Parliament has to take a stand against that.

John Mason: I thank the hon. Lady for her heartfelt intervention. We are clearly dealing with a difficult area. If one thing comes out of this Committees consideration of the Bill, I hope it is that the Government will realise that we are in a difficult area. That does not mean that we should not talk about this matter, but the Government need to be wary of trying to restrict religious belief and practice too much.
I totally agree that we should come down on bigotry, but the problem is defining it, because one persons bigotry is another persons belief. Sadly, it appears that, in society, and perhaps in this Committee as well, it is okay to call religious people bigoted, but it is not okay to call other people bigoted.

Sandra Osborne: The hon. Gentleman represents the Scottish National party on this Committee and I am beginning to wonder when we will get the SNP view of the situation. He implies that we should be weaker and should comply with the EU situation, rather than have stronger provision for this country. Why is he suggesting that?

John Mason: I am suggesting that the EU has set a reasonable standard. There is a danger that we will either catch out too few or too many people under the provisions on harassment. It is for the Government, this Committee and the wider House to judge and decide where they want that line to be. All I am trying to do is to point out that there are two different standards, and some people feel that they are being too easily caught out on the grounds of harassment.
To return to the previous point, can we allow a person any room at all for conscience? We do so on the issue of abortion. It is argued that the registrar should not have the job if she will not perform all the functions of her organisation, but by the same logic, every nurse and doctor in this country must carry out abortions. However, we have decided to allow a bit of freedom for conscience. It seems to me that we and the authority are surely big enough to do the same in this case.

Evan Harris: I have several points to make, although we are straying somewhat off the topic of harassment. First, that exemption, which I support, does not permit discriminatory behaviour. It involves provision of a service and falls short of discrimination, although some people might feel that they must go further. It does not involve picking on people; it involves a procedure.
Secondly, on the Ladele case, it is only fair to say that what she wanted to do was discriminate, which is why the employment tribunal found against her. It is also right to say that the Employment Appeal Tribunal did not uphold the findings of harassment. It needs to be recognised that not every sentence and every letter was written as well as it might have been, but in the end, the council was cleared of that charge. That is important.
Thirdly, it is not illegal to be bigoted on any grounds, because that is included in freedom of belief, but what we try to do is constrain that when it affects other people, particularly in the workplace. That is why I think that there is a particular responsibility to protect people from being discriminated against in the workplace. One does not need to discuss whether it is cultural bigotry or notI am sure that the beliefs are sincerely heldbut there must be some protection for the victims of that belief, if I can put it that way.

John Mason: Yes, and I see Ladele as the victim in that situation. She might not be the only victim, but I certainly see her as one.

Tim Boswell: Does the hon. Gentleman not agree at least that the major test in terms of the service usersin that case, the gay couple who wished to recognise and celebrate their relationship in a civil partnershipis whether they are able to use the service? If the registrar is the only registrar in a local authority area and such a couple are unable to discharge their wishes because there is no other person who can fulfil them, that perhaps makes the case significantly different from whatever reservations of conscience an individual registrar might have.

John Mason: As I see it, a health service must provide abortions and a local authority must provide registration of civil partnerships. The organisation must provide all those services, but I do not see that it automatically follows that every individual in that organisation must provide every service.
Several hon. Membersrose

John Mason: I am happy to give way, but I realise that you do not want to spend all day on this matter, Mr. Benton.

Lynne Featherstone: This is a difficult area, and we are trying to get the balance right, but as discrimination law has advanced so far as to bring into play factors that did not exist before, it is important that we get it right. That extends to a whole range of issues. There might be people who do not wish to police a gay march, or firemen who will not attend certain incidents. On the execution of public duty, it is important that we make it clear here and now that carrying out public services cannot be a matter of conscience in the way that the hon. Gentleman might wish. That is not signalling against a genuinely held conviction or peoples conscience; it is a necessity in the modern age. People with such convictions might ultimately make different choices about their careers.

John Mason: The logical extension of that is that anyone with a conscience on certain issues, whether religious or otherwise, will be squeezed out of public services. Anyone with a serious problem of conscience will no longer be able to work at a state school or a public hospital. Surely we want a more diverse and inclusive society than that.

Emily Thornberry: Perhaps the hon. Gentleman will accept the argument in these terms: a registrars duty is to ratify a contract that is justified in law passed by Parliament. Parliament passed a law allowing civil union between gay couples, so it is her job to ratify that contract. If she does not like the law, she has to get another jobshe has to move out and do something else.

Joe Benton: Order. Before the hon. Gentleman replies, let me say that we are in dangerwe are not quite there yetof discussing the merits of the case concerning the registrar, which is not part of the amendment. It is fair enough to use examples, and I have no objection to that, but I do not want the debate to be any more personalised. We are moving in that directionI can sense it comingso I want to add a cautionary note that we must not personalise these issues by referring to a specific case. We should keep to the merits or demerits of amendment 38.

John Mason: Thank you very much for that guidance, Mr. Benton.
Let me try to finish the point. I take the point about the legal duty, but I see the legal duty to provide the service as being primarily on the local authority. We will touch on schools later, and there are similar facets there. As I see it, however, every individual in the authority does not necessarily have to carry out every duty, and that is clearly the case, because some people do one job, while others do another job. If the authority had only one registrar, there would be more of a problemsorry, I should not have mentioned the registrar. However, if lots of people do the same job, it is possible for them not to carry out every duty.

Evan Harris: I am grateful to the hon. Gentleman for giving way, because there are a couple of important points. If the local authoritys charter says that its employees will not discriminate on grounds of race, sexual orientation or whatever in the delivery of services, the authority has to be able to live up to that charter without employees saying that they want to opt out without any come-back.
Through the hon. Gentleman, I would also like to say to the hon. Member for Daventry, for whom I have huge respect and genuine affection, that it is not acceptable to say that everything is all right as long as someone else fulfils the duty. Someone may have sincerely held beliefs that mixed-race marriage is wrong, and one could respect those beliefs by saying, All right, you dont have to do the marriage, because no one else has those views. However, it would still be wrong for a public authority to give credibility

Emily Thornberry: Will the hon. Gentleman give way?

Evan Harris: I am intervening on the hon. Member for Glasgow, East, so the hon. Lady will have to intervene on him. It would still be wrong for a public authority to give credibility to a prejudice, because that would give it the green light. Even if some forms of discrimination are sincerely held beliefs, we should not allow them to be exercised.

John Mason: I must make some progress or I will get in trouble with the Government Whip.

Emily Thornberry: If I undertake not to interrupt the hon. Gentleman again, may I just make one last point? A high number of marriages end in divorce, and a registrar might have firmly held beliefs that someone should not enter into a second marriage after they have been divorced. If they began to discriminate on that basiseven if they were one of fiveand other registrars held that view, a large number of people in my constituency would be unable to get married.

John Mason: Even most religious people would accept that marriage is perfectly acceptable after a divorce, so that is a bit of a red herring.

Tim Boswell: In the spirit of the last two interventions, will the hon. Gentleman at least concede that, in a sense, we are not pursuing absolutes in this matter, whatever peoples consciences are? There will be some quite proper reservations about the employment in a public job of persons who, for example, support a minority or extremist party, and that is defensible in certain conditions. My concern is that people should have the widest possible freedom to exercise their conscience as long as, and to the extent to which, it is consistent with the discharge of the public authoritys duties and its provision of public services. That is a difficult balance to find, but it is not an absolute one.

John Mason: The word balance is one that I like. I hope that the Solicitor-General will take the points made on board. This is an incredibly difficult area. I had better move on.
The reason for asking the Solicitor-General to explain the position is the concern in some circles that specific laws against harassment, especially if they are widely drawn, may create a risk to free speech. I presume that there is a risk that someone could claim that mere disagreement with them over an issue related to a protected characteristic had created an offensive environment or made them feel violated. However, those are subjective terms.
The law on harassment is controversial. In 2005, the Government considered introducing harassment on the grounds of religion in the provision of goods and services. Since then, they have undertaken a discrimination law review and they concluded that the Bill should not introduce harassment on the grounds of religion or sexual orientation in the provision of goods and services. Indeed, clause 27(8) specifically excludes those grounds. I assume that the Government saw that introducing the right to sue for offending feelings while receiving goods or services had the potential to unleash a wave of litigation.
Harassment has a more limited application in the provisions of goods and services, but on employment it applies to all strands. One obviously has less choice in the working environment than in the marketplace. For example, if one does not like the atmosphere in one shop, one can go to another; but it is much harder to switch if one does not like the atmosphere at work. If we are to have a harassment law on all grounds for employment, and if we are to apply it also to the provision of goods and services and some other grounds, we must be careful about the threshold in order to prevent misuse. The definition of harassment is already set about with limitations. The question is not whether we have limitations, but what they should be. Why is it necessary for us to go further than the EU?

Vera Baird: I intervene to deal with the hon. Gentlemans point while he is still on his feet. He is right that the EU test is narrower than ours. He said that our wider test, as he characterises it, has been in our law since 2003, although we think that it has been in our law since 2000. We would break the principle of non-regression if we narrowed it to the EU test. Does he have an answer other than that which is prohibited?

John Mason: I raise these points for discussion. If it is impossible to wind things back, I must accept it. However, I am grateful for the clarification provided by the Solicitor-General, although perhaps she is not aware of why, in 2000 or 2003, a different definition was brought in.
Finally, and I hope briefly, I touch on the amendments tabled by the hon. Member who represents AbingdonI wish to save time by not saying the full name of his constituency, or will that upset the people of west Oxfordshire? I wish to speak to amendments 230 and 231and possibly 232 and 233, which are related. They seek to extend the harassment provisions to cover religion and sexual orientation in the provision of public services. I am naturally interested to see that the definition uses the and formulation of my amendment rather than the or formulation used by the Government. However, given what I have said, I obviously oppose extending the Bill to cover harassment on those grounds.
I shall touch on some of what the hon. Gentleman said. He mentioned the question of schools, and specifically mentioned homophobic bullying. I am sure that we are unanimous in agreeing that such behaviour should not happen. I know that schoolsboth faith schools and other kindsare desperately trying to tackle bullying of all kinds, and I fully support them in that. I understand that faith schools in England and Scotland want to teach, for example, that sex outside marriage is wrong; indeed, that forms part of the ethos of such schools. However, we do not want such a statement to be thought of as bullying. For example, in Glasgow every child lives in the catchment areas of two schools, so every family and every child can choose between a faith school and a secular one.

Emily Thornberry: What, therefore, would happen to a young man whose Catholic parents want him to go to a particular school, but who, at the age of 13 or 14, decides that he is gay, and finds himself bullied by teachers who tell him that there is something profoundly wrong with him because he wants sex outside marriage?

John Mason: There is a difference between making a statement such as, I believe it is wrong to have sex outside marriage, and bullying. The two are not the same. I hopeI certainly have faith in Glasgow schools of all descriptionsthat schools are attempting to tackle bullying at all levels, but that is not to say that they accept all forms of behaviour as just being okay.

Evan Harris: The hon. Gentleman is saying that there are some schoolsstate schools, state-funded schoolsproviding that public service that want to teach that gay sex is always wrong. They can cover it on the basis of sex outside marriage but, as the hon. Member for Islington, South and Finsbury said, that means that gay sex is always wrong, always sinful and something to be condemned, to put it mildly. I cannot believe that this Committee, this Housecertainly this applies to my partyand the Government think that that is acceptable. A school must not do that. A school can say that certain organisations or religions believe that, but it has a terrible effect on young people who are gay, lesbian, bisexual and so on.
The evidence, which I have not read out, although I could, shows that the feeling that one is being bullied and instances of bullying are a particular problem in faith schools, precisely for the reasons that the hon. Gentleman gives. It is not right for him to hide behind the argument that their ethos says that sex outside marriage is wrong. That means that being gay is always wrong if people express it sexually, which every gay person is entitled to do within the law.

John Mason: Our policythis is our party policy, for the benefit of the hon. Member for Ayr, Carrick and Cumnockis that if sufficient parents want a particular type of school, be it religious, non-religious or whatever, we would aim to provide that type of school. It could be Catholic or we could be talking about other Christian denominations. We have at least one Jewish school in Scotland and we are looking at Muslim schools in Scotland as well. Those would be schools run by the public sector.
I believe in diversity. If there is one thing that I am trying to get across in Committee, it is the idea of diversity, of live and let live, of being inclusive and of allowing different views. We do not have to have all schools saying that marriage is unnecessary or not particularly a good thing. We can have some schools saying that marriage is a good thing. We can have other schools taking a more relaxed view about the issue. Parents would have a certain amount of choice about which one they wanted their child to go to.
To take another example, is it unrealistic to imagine that someone could walk into a parish church or faith school on polling day, cast their vote and then claim to have been religiously harassed while in receipt of public services because of the presence of a cross or Bible verses on the walls? The amendment is dabbling in dangerous territory, and the Government have taken the wise course and left that alone.
The hon. Member for Oxford, West and Abingdon seems to be treating religion or belief less favourably than other characteristics. His harassment test for sexual orientation and for gender reassignment in his proposed new subsections (2A) and (2B) in amendment 231 is an
intimidating, hostile, degrading, humiliating or offensive
environment, but for religion in subsection (2C), the test is
intimidating, hostile, degrading or humiliating.
Offensive has been left out. That seems a little inconsistent.

Evan Harris: I must take issue with the hon. Gentleman. Actually, the amendment would provide protection for religions. He gives the example of a cross or another religious symbol in a school that is used on polling day. That should not be forced to be covered up just because another public service is being delivered there. In fact, I would find it hard to argue that it was offensive. That is why my definition leaves out offensive from the idea of being harassed on religious groundsto protect the religious freedom of other people. In fact, the motivation is opposite to that which he suggests.

John Mason: I can deal only with the words that the hon. Gentleman uses, but I am happy to accept his reassurance about the intention. He also used the term thin-skinned. I think that he was perhaps referring to religious or similar people. The word bigoted has already been usedagain aimed at religious people. I find both difficult. If I was using those words about other people, people would rightly be offended, but there we go.
I am grateful that the Minister has said that she does not want to create a hierarchy of rights. I hope that she will reject amendment 231 for that reason. I do not agree with harassing anyone, but we have to be wary of turning schools, if this is what is intended, into a battlefield for competing world views. The Government seem to realise that there is too much scope for causing division, hence clause 80(1) specifically excludes the religion

Joe Benton: Order.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One oclock.